Judge strikes unintentional guilty plea

SARA MINOGUE

A Cambridge Bay man has been allowed to withdraw a guilty plea to a charge of assault after a judge agreed that the plea was made carelessly by a lawyer who did not communicate his intentions to his client.

Colin Amegainek was charged with assault with a weapon and breach of probation on Nov. 4, 2004.

Amegainek retained Peter Harte as his lawyer, who entered a plea of not guilty, and worked with the Crown attorney to produce a written statement of facts on March 25, which cast into doubt some statements by a witness.

On the next court circuit in April, Harte assigned the trial to another lawyer, Euan Mackay. Harte arranged for Mackay to meet with a witness on Sunday, April 24 to obtain a final piece of evidence that the accused did not commit assault with a weapon, and to prepare for a trial that week.

But instead of meeting with the witness, Mackay cancelled the meeting on Sunday, and met the accused only shortly before court on Monday.

And rather than proceed to a trial, which could have brought witness testimony into question, Amegainek entered a guilty plea to assault and to the breach of probation charge.

When Harte returned as Amegainek’s lawyer at another court circuit in June, he was surprised by the guilty plea, and arranged with his client to apply to have the guilty plea struck down on the grounds that Amegainek did not consent to plead guilty, and did not understand what was happening when Mackay entered the plea.

At a hearing on Jan. 9, Amegainek testified that Mackay had come to him with a piece of paper and told him to sign it. Embarrassed that he could not read well, Amegainek signed the document.

During the hearing, Amegainek said that he did not know the meaning of the words “complainant,” “incensed,” or “escalated,” and when asked to read part of a pre-sentence report, he read four words before stumbling on the word “states.”

Harte told the judge that this presented a common illiteracy problem, where accused persons are embarrassed about not being able to read, and respond affirmatively to any suggestion made. He also presented a transcript of another trial where Mackay had encountered a similar communication problem with a client.

In a written judgment, Judge Earl Johnson considered the precedents for withdrawing a plea based on the incompetence of counsel, but refrained from declaring Mackay incompetent.

Instead, he noted that using an agreed statement of facts — an uncommon practice during busy circuit courts in Nunavut — requires a “higher standard of care” when the accused’s literacy is in question, including possibly translating the document.

Johnson struck down the plea, on the basis of a communication problem, caused by a combination of Amegainek being unable to understand the written statement of facts, the complicated nature of the plea, and “the lack of care by Mackay.”

The matter will now go to trial in April in Cambridge Bay.